Probe details violations by prosecutors

by Brad Heath and Kevin McCoy - Sept. 23, 2010 12:00 AMUSA Today

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA Today investigation found that prosecutors have repeatedly violated that duty in courtrooms across the country.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution's promise of a fair trial. Congress in 1997 enacted a law to end the abuses. Yet USA Today documented 201 criminal cases in the years that followed in which judges determined that U.S. Justice Department prosecutors themselves violated laws or ethics rules.

In case after case over that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said still others had broken plea bargains.

The transgressions USA Today identified were so serious that in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct. And each has the potential to tarnish the integrity of the prosecutors who do their jobs honorably.

In a justice system that prosecutes more than 60,000 people a year, mistakes are inevitable. But the instances of prosecutorial misconduct that USA Today documented go beyond everyday missteps. In the worst cases, judges, former prosecutors and others say, they happen because prosecutors deliberately cut corners to win.

With help from legal experts and former prosecutors, USA Today spent six months examining federal prosecutors' work, reviewing legal databases and department records. Although the true extent of misconduct by prosecutors will likely never be known, the assessment is the most complete yet of the scope and impact of those violations.

USA Today found a pattern of "serious, glaring misconduct," said Pace University law professor Bennett Gershman, a leading expert on misconduct by prosecutors. "It's systemic now, and the system is not able to control this type of behavior. There is no accountability."

How often prosecutors knowingly violate the rules is impossible to ascertain. The Justice Department's internal ethics watchdog, the Office of Professional Responsibility, insists it happens rarely. It found just 68 intentional violations during the past decade among more than 750 investigations. The department would not identify the cases it concluded were marred by intentional violations, and removed from its public reports details that could identify the prosecutors involved.

The head of the Justice Department's criminal division, Lanny Breuer, said "obviously, even one example of real misconduct is too many. If you've engaged in misconduct, the response of the department has to be swift and strong."

As a result of prosecutorial misconduct, USA Today found that:

 Innocent people are punished. Among the consequences of misconduct, wrongful convictions are the most serious, said former U.S. attorney general Dick Thornburgh. He said "no civilized society should countenance such conduct or systems that failed to prevent it."

 Guilty people go free or face less punishment. In California, a double agent accused of sharing defense secrets with China was sentenced to probation instead of prison because prosecutors refused to let her lawyer talk to her FBI handler, a key witness.

 Taxpayers end up paying sanctions to those wrongly accused and for retrials when convictions are overturned. The Justice Department has paid nearly $5.3 million in sanctions to defendants who were wrongly accused. It has spent far more to repeat trials for people whose convictions were thrown out because of misconduct, a process that can take years, although the full price tag is impossible to tally.